ferguson 13-5507 brief in opposition

8/22/2019 Ferguson 13-5507 Brief in Opposition

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CASE NO. 13-5507

CAPITAL CASE

IN THE UNITED STATES SUPREME COURT

JOHN ERROL FERGUSON,

Petitioner,

vs.

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARITO THE ELEVENTH CIRCUIT COURT OF APPEALS

EXECUTION SCHEDULED

AUGUST 5, 2013

RESPONDENTS BRIEF IN OPPOSITION

PAMELA JO BONDI

Attorney General

Tallahassee, Florida

*STEPHEN D. AKE

Assistant Attorney General

Florida Bar No. 0014087

[email protected]

*Counsel of Record

SCOTT A. BROWNE

Assistant Attorney General

Florida Bar No. 0802743

[email protected]

Office of the Attorney General

Concourse Center 4

3507 E. Frontage Road, Suite 200

Tampa, Florida 33607-7013

Telephone: (813) 287-7910

COUNSEL FOR RESPONDENT


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QUESTIONS PRESENTED FOR REVIEW

Respondent restates the questions presented, as follows:

Whether this Court should exercise certiorarijurisdiction to review a fact specific decision of theEleventh Circuit Court of Appeals affirming the denialof habeas relief on Fergusons competency to be

executed claim where the underlying state courtdecision is neither contrary to, nor an unreasonableapplication of this Courts decisions in Ford andPanetti and which presents no unsettled question ofconstitutional law which has engendered conflict amongeither state or federal appellate courts?


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TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW................................. iTABLE OF CONTENTS............................................. iiTABLE OF CITATIONS........................................... iiiNOTICE OF DISPOSITION OF RELATED CASES PRESENTED TO THIS COURT ... ivCITATION TO OPINION BELOW...................................... 1STATEMENT OF CASE AND FACTS.................................... 1REASONS FOR DENYING THE WRIT.................................. 19

I........................................................ 19This Court should decline to exercisecertiorari jurisdiction to review a factspecific decision of the Eleventh CircuitCourt of Appeals affirming the denial ofhabeas relief on Fergusons competency to be

executed claim where the underlying statecourt decision is neither contrary to, nor anunreasonable application of this Courts

decisions in Ford and Panetti and whichpresents no unsettled question ofconstitutional law which has engenderedconflict among either state or federalappellate courts. The state court conclusionthat Petitioner is competent to be executedhas overwhelming support in the record.

CONCLUSION.................................................... 38CERTIFICATE OF SERVICE........................................ 39


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TABLE OF CITATIONS

Federal CasesBedford v. Bobby,

645 F.3d 372 (6th Cir. 2011) ................................ 25

Bloeth v. State of N. Y.,82 S. Ct. 661 (1962) ........................................ 19

Butler v. McKellar,494 U.S. 407 (1990) ......................................... 37

Chevron U.S.A., Inc. Sheffield,471 U.S. 1140 (1985) ........................................ 20

Demosthenes v. Baal,495 U.S. 731 (1990) ......................................... 32

Ferguson v. Florida,133 S. Ct. 498, 184 L.Ed.2d 334 (2012) .................... v, 2

Ferguson v. Secy, Dept. of Corr.,130 S. Ct. 3360 (2010) ....................................... 2

Ferguson v. Secy, Dept. of Corr.,580 F.3d 1183 (11th Cir. 2009) ............................ 1, 9

Ferguson v. Secy, Florida Dept. of Corrections,494 Fed. Appx. 25 (11th Cir. Oct. 22, 2012)(unpublished) ..... 3

Ferguson v. Secy, Florida Dept. of Corrections,716 F.3d 1315 (11th Cir. 2013) .......................... passim

Ferguson v. Tucker,133 S. Ct. 499, 184 L.Ed.2d 334 (2012) .................... v, 3

Ford v. Wainwright,477 U.S. 399 (1986) ..................................... passim

Harrington v. Richter,131 S. Ct. 770, 786 (2011) .................................. 22

Johnson v. United States,860 F. Supp. 2d 663 (N.D. Iowa, 2012) ....................... 11

Layne & Bowler Corp. v. Western Well Works,261 U.S. 387 (1923) ......................................... 20


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Miller-El v. Cockrell,537 U.S. 322 (2003) ......................................... 21

Panetti v. Dretke,401 F. Supp. 2d 702 (W.D. Tex. 2004) ........................ 33

Panetti v. Quarterman,551 U.S. 930 (2007) ..................................... passim

Rice v. Sioux City Memorial Park Cemetery,349 U.S. 70 (1955) ...................................... 20, 31

Rosoto v. Warden, Cal. State Prison,83 S. Ct. 1788 (1963) ....................................... 19

Ross v. Moffitt,417 U.S. 600 (1974) ......................................... 37

United States v. Johnston,268 U.S. 220 (1925) ......................................... 31

Williams v. Taylor,529 U.S. 420 (2000) ......................................... 22

Woodford v. Visciotti,537 U.S. 19 (2002) ...................................... 21, 30

Yarborough v. Gentry,540 U.S. 1 (2003) ........................................... 21

State CasesFerguson v. State,112 So. 3d 1154 (Fla. 2012) ....................... 1, 2, 10, 25

Ferguson v. State,417 So. 2d 631 (Fla. 1982) ................................ 6, 9

Ferguson v. State,417 So. 2d 639 (Fla. 1982) ................................... 6

Ferguson v. State,

474 So. 2d 208 (Fla. 1985) ................................... 1




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Green v. State,374 S.W. 3d 434 (Tex. Crim. App. 2012) ...................... 25

Other Authorities11th Cir. Rule 224(a)(7)...................................... 3

28 U.S.C. 2254............................................... 2

28 U.S.C. 2254(d)(1)........................................ 21

28 U.S.C. 2254(e)(1)........................................ 21

Antiterrorism and EffectiveDeath Penalty Act of 1996 ........................... 19, 21, 22

Fla. R. Crim. P. 3.812.................................... 10, 22

Fla. R. Crim. P. 3.812(b)..................................... 22

Sup. Ct. R. 10................................................ 20

NOTICE OF DISPOSITION OF RELATED CASES PRESENTED TO THIS COURT

This Court previously denied certiorari review of the

Florida Supreme Courts decision affirming the Eighth Judicial

Circuit Courts competency finding. Ferguson v. Florida, 133 S.

Ct. 498, 184 L.Ed.2d 334 (2012). This Court also declined to stay

Fergusons execution after the Eleventh Circuit Court of Appeals

vacated the district courts grant of a stay pending resolution

of Fergusons habeas petition. Ferguson v. Tucker, 133 S. Ct.

499, 184 L.Ed.2d 334 (2012).


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CITATION TO OPINION BELOW

The opinion of the Eleventh Circuit Court of Appeals on the

denial of habeas relief is reported at Ferguson v. Secy, Florida

Dept. of Corrections, 716 F.3d 1315 (11th Cir. 2013). The

underlying Florida Supreme Court opinion affirming the competency

ruling of the state circuit court is reported at Ferguson v.

State, 112 So. 3d 1154 (Fla. 2012).

STATEMENT OF CASE AND FACTS

The Petition for Writ of Certiorari filed in the instant

case is replete with misleading and erroneous factual statements

which the Respondent will address below. The Respondent will not

detail the lengthy history of litigation in state and federal

court but will recite the case history as it addresses

Petitioners mental status litigation. The State does not accept

Appellants statement of facts as it is largely argumentative,

misleading, and inaccurate.

A. Procedural Posture Of The Instant Competency Claim Which IsThe Limited Subject Of This Certiorari Petition

Ferguson is a death-sentenced inmate whose sentences became

final on October 15, 1985 with the issuance of the mandate

following affirmance on resentencing. Ferguson v. State, 474 So.

2d 208 (Fla. 1985). After years of litigation in state and

federal courts, the Eleventh Circuit Court of Appeals affirmed

the denial of habeas relief and issued its mandate on January 8,

2010. Ferguson v. Secy, Dept. of Corr., 580 F.3d 1183 (11th Cir.

2009). On March 31, 2010, Ferguson filed his petition for writ of


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certiorari which was denied by this Court on June 1, 2010.

Ferguson v. Secy, Dept. of Corr., 130 S. Ct. 3360 (2010).

On September 5, 2012, Florida Governor Rick Scott signed a

death warrant and scheduled Fergusons execution for October 16,

2012. Subsequently, the execution was briefly stayed in order to

allow the parties, the circuit court, and the Florida Supreme

Court to consider Fergusons claim that he was incompetent to be

executed. The execution was rescheduled for October 23, 2012. The

state circuit court, following two days of testimony, concluded

that Ferguson was competent to be executed. This decision was

appealed to the Florida Supreme Court, which affirmed the denial

of relief on October 17, 2012. Ferguson v. State, 112 So. 3d

1154, 1156 (Fla. 2012). This Court denied certiorari review of

that decision under the impending warrant on October 23, 2012.

Ferguson v. Florida, 133 S. Ct. 498, 184 L.Ed.2d 334 (2012).

Petitioner filed a federal habeas corpus petition under 28

U.S.C. Section 2254 in the United States District Court for the

Southern District of Florida on October 19, 2012 along with a

motion to stay his impending execution. The district court

granted a temporary stay of execution on October 20, 2012, to

permit a fair hearing on the Petition. The State of Florida

filed an emergency motion to vacate the stay of execution which

was granted by the court of appeals on October 22, 2013. The

court concluded that the district court abused its discretion in

granting a stay by employing the wrong legal standard and


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concluded that Petitioner did not show the requisite substantial

likelihood of success to support staying his execution. Ferguson

v. Secy, Florida Dept. of Corrections, 494 Fed. Appx. 25, 27,

(11th Cir. Oct. 22, 2012) (unpublished). Petitioner sought review

of that decision by filing a motion to stay his execution pending

certiorari review. This Court denied the motion to stay. Ferguson

v. Tucker, 133 S. Ct. 499, 184 L.Ed.2d 334 (2012).

Less than one hour prior to the scheduled execution, the

district court entered an order denying Fergusons habeas

petition without any discussion, but granted a certificate of

appealability on two issues relating to the state courts

competency determination. The Eleventh Circuit Court of Appeals

thereafter granted a temporary stay based upon the district

courts grant of a certificate of appealability, applying

Eleventh Circuit Rule 224(a)(7) (directing the court to enter a

stay of execution when a district court grants COA).1

Following briefing and oral argument, the Eleventh Circuit

affirmed the denial of habeas relief, issuing its opinion on May

21, 2013. Ferguson v. Secy, Florida Dept. of Corrections, 716

1

The State moved to vacate the stay on the ground that thedistrict court had improperly granted a COA and that a stay wasunwarranted in light of the courts determination that Ferguson

did not have a substantial likelihood of success on the merits ofhis competency claim. The State also noted that the EleventhCircuits internal rule did not supersede this Courts precedent

governing the standards to be utilized by federal courts ingranting a stay. The Eleventh Circuit denied the states motion.


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F.3d 1315, 1330 (11th Cir. 2013). Rehearing en banc was denied on

July 15, 2013.

Following issuance of the Eleventh Circuits mandate, the

Governor of the State of Florida reset the execution date to

August 5, 2010, at 6:00 p.m.

Fergusons Murders

Florida holds Ferguson under death sentences relating to his

prosecutions on two separate capital cases for eight murders, six

committed in Carol City and two in Hialeah. The facts of these

offenses were recounted in the Eleventh Circuits opinion below:

A. The Crimes

Part of the analysis of Fergusons mentalcompetency to be executed involves his understanding ofthe connection between his execution and the crimes forwhich he is going to be executed, which makes thenature of those crimes relevant.

1. The Carol City Murders

On the night of July 27, 1977, Ferguson, posing asa Florida Power and Light employee who needed to checksome electrical outlets, persuaded Miss Margaret Wooden

to let him enter her home. Ferguson v. State, 417 So.2d 639, 640, 643 (Fla. 1982). After pretending to checkthe outlets in several rooms, Ferguson drew a gun on

Wooden and bound and blindfolded her. Id. at 640. Hethen let two of his criminal cohorts into the house so

that they could search it for drugs and valuables. Id.About two hours later the owner of the house and five

of his friends arrived. Id. Wielding guns, Ferguson andhis accomplices bound and blindfolded and searched the

six men. Shortly thereafter, Woodens boyfriend,Michael Miller, arrived. He, too, was bound and

blindfolded and searched at gunpoint. Id. While six ofthe robbery victims were forced to kneel in the livingroom, Miller and Wooden were taken into her bedroom.

Id. There they were put with their knees on the floor

and their upper bodies lying across the bed. Id. at641.


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Then the killing began. Ferguson and his partnersin crime methodically murdered five of the six men whowere kneeling in the living room by shooting each onein the back of the head while his hands were tied

behind him. Id. One of the six men somehow survived theshot to the back of his head, living to tell about the

methodical murders of the other men in the living room.Id.

While Miller and Wooden were kneeling in thebedroom, Wooden heard the gunshots in the living room.

Id. She saw her boyfriend shot to death beside her. Id.She saw a pillow coming toward her before she was shot

in the head. Id. And she heard Ferguson running out of

the bedroom after the shootings. Id. Despite her headwound, Wooden managed to make it to a neighbors house.

Id. When the police arrived at Woodens house, theyfound six dead victims, all of whom had been shot in

the back of the head while their hands were boundbehind their backs, and they found the two intendedmurder victims who had been shot in that same manner

but had somehow survived. Id.

2. The Hialeah Murders

Ferguson had two accomplices when he committed thesix Carol City murders, but less than six months later

he committed two more murders all by himself. Ferguson

v. State, 417 So. 2d 631, 633 (Fla. 1982). On theevening of January 8, 1978, Brian Glenfeld and Belinda

Worley, both of whom were seventeen years old, left aYouth for Christ meeting in Hialeah. Id. They weresupposed to meet some friends at a local ice cream

parlor, but they never arrived. Id. Apparently on theway to meeting their friends, the young couple pulled

off the road. See id. at 636. What Ferguson did to thetwo teenagers when he chanced upon them was recountedby the trial court judge:

The facts reveal that the two victims were seatedin an automobile and while seated therein agunshot was fired through the window strikingBrian Glenfeld in the arm and chest area. A

significant amount of bleeding followed and thisvictims blood was found throughout many areas ofthe front of the automobile as well as on theclothing of Belinda Worley. Following theshooting, the female victim ran many hundreds offeet from the car in an attempt to [elude] thedefendant and was finally overtaken in some ratherdense overgrowth and trees. She was subjected to


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many physical abuses by this defendant, includingbut not limited to, sexual penetration of hervagina and anus. The discovery of embedded dirt inher fingers, on her torso both front and back andin many areas within her mouth and the findings ofhemorrhaging around her vagina and anal cavity

would indicate that she put up a significantstruggle and suffered substantially during theperpetration of these indignities upon her body.Expert testimony indicates that she was a virginat the time of the occur[r]ence of this crime. Theposition of her body and the location of thewounds on her head would indicate that she was ina kneeling position at the time she was shotthrough the top of the head. She was left in apartially nude condition in the area where thecrime was committed to be thereafter fed upon byinsects and other predators. Physical evidence

would substantiate that following the attack uponBelinda Worley the defendant went back to the carand shot Brian Glenfeld through the head.

Id. Ferguson stole cash from Brian Glenfelds wallet.

Id. at 633. Among the items he took from BelindaWorley, or her body, were two rings, a gold bracelet,

and a pair of earrings. Id. When he ripped one of those

earrings from Worleys ear, he tore her ear lobe. Id.

To murder the two young victims Ferguson used a.357 magnum pistol that had been stolen from a victimof the Carol City murders nearly six months earlier.

Id.He confessed to killing the two kids. Id.

Ferguson, 716 F.3d at 1318-20 (quoting and citing the Florida

Supreme Courts opinions in Ferguson v. State, 417 So. 2d 639,

640-41, 644-45 (Fla. 1982) and Ferguson v. State, 417 So. 2d 631,

636 (Fla. 1982).

Fergusons Mental Health Background

Petitioners Introduction and statement of the case

includes a selective and misleading portrait of his mental health

history. Indeed, Fergusons counsel attempts to paint a picture

of an extremely mentally ill individual. The State rejects this


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characterization of Ferguson as unfounded. The more accurate view

is that Ferguson has a very long history of malingering mental

illness to avoid legal jeopardy. For example, a unanimous three

doctor report from the State (criminal) Mental Hospital in

Florida in 1976 concluded that Ferguson has not demonstrated any

psychosis. (V10, 1773). This patient describes symptoms in the

past which could have been interpreted as a schizophrenic

process. However, no symptoms or signs of schizophrenia disorder

are present now. It is noted that the psychological testing was

consistent with the clinical impression that this patients

primary problem is a personality disorder. He was given a final

diagnosis of a personality disorder, antisocial type, with a

secondary diagnosis of drug abuse, multiple. (V10, 1773-74)

(quoting Discharge Report from Florida State Hospital).

Fergusons subsequent criminal conduct was consistent with

the antisocial personality disorder diagnosis, and not any other

underlying mental impairment. Dr. Suarez noted that a 1976 MMPI

from the Department of Corrections records he reviewed, reflected

a test within normal validity scale limits, as opposed to the one

Dr. Suarez administered in 2004, which was invalid because of

exaggeration and over-reporting. The two highest elevations on

the clinical scales were 4, psychopathic deviant [deviate] and 9,

which is hypomania. This 4-9 code type is one of the more

malignant types of codes because it is someone who has

antisocial tendencies matched with someone who is thrill-seeking


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or stimulation seeking. (CT4, 552).2

Ferguson ignores the fact that since 1978, the evidence is

very much conflicting as to whether or not Petitioner suffers

from any mental disorder aside from antisocial personality

disorder and that a consensus has emerged among the reviewing

courts, both state and federal, that Ferguson has exaggerated or

consciously malingered symptoms of mental illness. Indeed, the

circuit court below, while indicating that Petitioner did not

malinger during the Commission evaluation, wherein Ferguson

acknowledged quite rationally his impending execution and the

reason for it, the court credited State expert Dr. Enrique Suarez

as to Petitioners history of malingering. (V16, 2730).

At the time of the Carol City trial, trial counsel

challenged Fergusons competency and planned to pursue an

insanity defense. Ferguson was examined by four court-appointed

doctors, and after reviewing the reports and taking depositions,

trial counsel decided that the evidence of his mental illness was

weak, and, would open up serious rebuttal in the form of evidence

that Ferguson was a highly dangerous psychopath who was

consciously feigning or malingering symptoms of mental illness.

Ferguson v. State, 593 So. 2d 508, 510-11 (Fla. 1992).

2 In addition, nothing in Fergusons criminal history suggestedparanoia or a type of disorganized schizophrenic related offense.Dr. Suarez explained, Every one of his crimes relate directly tohis antisocial need and his self gratification without wanting topostpone gratification and impulsively doing these things. Hiscrimes involved other people, coordinating, planning, wearing adisguise. (CT4, 558).


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Every court to review the question of Fergusons mental

status in relation to his competency to proceed, at trial, in

state post-conviction, and his federal habeas corpus on his

murder convictions, has determined that Ferguson is competent.

See Ferguson v. State, 417 So. 2d 631, 634-35 (Fla. 1982)

(holding that the evidence was sufficient to support the trial

courts finding that Ferguson was competent to stand trial for

the murders of Brian Glenfeldt and Belinda Worley); Ferguson v.

State, 789 So. 2d 306 (Fla. 2001) (upholding the state

postconviction courts finding that Ferguson was competent to

proceed in postconviction proceedings as the credible testimony

at the three day evidentiary hearing indicated that Ferguson was

malingering and exaggerating); Ferguson v. Secy, Dept. of Corr.,

580 F.3d 1183 (11th Cir. 2009) (noting that six experts testified

regarding Fergusons competency to assist his counsel in his

federal habeas proceedings and the district court did not err in

finding Ferguson competent to proceed). Notably, after an

extensive hearing on Petitioners competence to proceed with his

federal habeas corpus petition in 2004, the Honorable United

States District Court Judge Daniel T. K. Hurley (S.D. Fla.),

rejected the opinions of Fergusons experts as neither credible

nor worthy of belief. (PCR2 V2, 231). Judge Hurley found

Ferguson competent to proceed, stating:

The court finds that the assessments offered by Dr.Mutter and Dr. Suarez as to Mr. Fergusons present

mental state are credible and worthy of belief, i.e.,petitioner is in remission and is malingering or


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exaggerating symptoms for the purpose of feigningmental illness.

(PCR2 V2, 231). Finally, the state circuit court, the Florida

Supreme Court and the Eleventh Circuit have rejected challenges

to Fergusons competency to be executed---which is the subject of

the instant certiorari petition. Ferguson v. State, 112 So. 3d

1154, 1156 (Fla. 2012) and Ferguson v. Secy, Florida Dept. of

Corrections, 716 F.3d 1315 (11th Cir. 2013).

The State offered a mental health submission to the trial

court below documenting Petitioners mental health history,

which, unlike Petitioners submission to the lower court,

comprehensively presented the past examinations of doctors who

have found Petitioner competent and malingering or exaggerating

symptoms of mental illness as well as those doctors which found

Ferguson incompetent. (V9, 1479-83) (States Exh. 5, Fergusons

Mental Health History Chart). The recent hearing on Fergusons

competence to be executed in which extensive evidence was taken

on Fergusons mental state, conclusively established that

Ferguson understands the nature and effect of the death penalty

and why it was imposed upon him.

The Competency Hearing Under Florida Rule Of Criminal Procedure

3.812

Petitioners selective and misleading recitation of facts

relating to the competency hearing in state court warrants some

clarification. The Governor, while questioning whether there were

any allegations which truly raised any question regarding


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Petitioners competency or sanity to be executed, appointed a

commission of three psychiatrists to examine the Petitioner and

issue a report. See 922.07, Fla. Stat. (2009) (outlining

procedures for Governor to follow when he or she is informed that

a person under sentence of death may be insane). The Governors

commission of three psychiatrists issued its report on October 1,

2012, unanimously finding Ferguson competent, finding that to a

reasonable degree of medical certainty that Mr. Ferguson: 1)

has no genuine current mental illness, and 2) understands the

nature and effect of the death penalty and why it was imposed

upon him (Commission Report at 2). The subsequent evidentiary

hearing proceeded over the course of two days on October 9th and

10th.

Petitioners statement of the case falsely asserts that

Ferguson presented uncontroverted evidence that he is a

paranoid schizophrenic and that he suffers from a large host of

delusions and a large number of hallucinations. (Petition at 5).

Only a single defense expert was of this opinion, the defense

friendly Dr. George Woods.3 As discussed below, his conclusions

were very much controverted not only by state experts, but,

virtually all of the other evidence presented during the

3 The California-based Dr. Woods routinely testifies across thecountry in criminal cases, but, notably, has solely andexclusively testified on behalf of criminal defendants. Itappears that Dr. Woods opinions are frequently provided, but

also frequently rejected, by reviewing courts. See e.g.,Johnsonv. United States, 860 F. Supp. 2d 663, 801-02 & 808-11, fn. 46(N.D. Iowa, 2012) and cases cited therein.


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competency hearing. The state circuit court ultimately found that

the State experts conclusions as to Fergusons competency were

conclusively supported by the record.

Dr. Woods testified that Petitioner is a paranoid

schizophrenic and has repeatedly been diagnosed as a

schizophrenic and experiences a wide range of hallucinations and

delusions. (CT1, 54-55). The other expert presented by

Petitioner, Dr. Richard Rogers, did not render an opinion on

Petitioners competency to be executed and did not even offer a

diagnosis. (CT1, 125-27). Rather, Dr. Rogers testified that he

administered a number of tests to Petitioner on September 20 and

21, 2012, and concluded that they showed he was not presently

malingering.4 (CT1, 179). However, Dr. Rogers acknowledged that

from his interaction with Ferguson that he appeared to be of

average intelligence and was able to rationally communicate with

him. (CT2, 202). The only other witness presented by Petitioner

was one of his defense attorneys who was present during the

Commission evaluation of the Petitioner and testified to her

recollection of the interview and process.

In rebuttal, the State presented two of the board certified

psychiatrists who were on the Governors Commission who examined

the defendant, Dr. Wade Myers and Dr. Tonia Werner. Those experts

4 Dr. Rogers acknowledged that he had only conducted a limitedreview of Petitioners background but that it did appear fromtesting conducted in 2004 that Petitioner was malingering at thattime. (CT1, 179; CT2, 197).


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testified that the defendant was competent to be executed, that

Petitioner expressed a rational and factual understanding of the

punishment and the reasons for it, and that he did not exhibit

signs of paranoid schizophrenia. (CT2, 263, 308, 328-29; CT3

470). The State also presented the testimony of Dr. Enrique

Suarez, a neuropsychologist, who had previously examined

Petitioner prior to the federal competency hearing, and, found

that he was malingering at that time. Dr. Suarez testified that

in his mind there is no doubt that Ferguson was never

schizophrenic. (CT4, 555). The State also presented the mental

health counselor from death row who testified that Petitioner has

been classified as the highest functioning mental status, S-1,

since 2001 and that in her seven years on death row she has

neither observed any signs or symptoms of mental problems from

Petitioner and that no such signs or symptoms have been reported

to her from any source. (CT3, 424-28). Additional corrections

personnel were called to testify to corroborate the fact that

Petitioner has not exhibited any signs or symptoms of mental

illness and that Petitioner had rationally discussed his

impending execution and the burial of his remains. (CT2, 336-37;

CT3, 405-20).

On October 12, 2012, the circuit court of the Eighth

Judicial Circuit issued an order finding Petitioner competent to

be executed, noting that Petitioner failed to establish his

incompetency by clear and convincing evidence as required by


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Florida law, or, even under the lesser preponderance of the

evidence standard. The circuit court credited the testimony of

the States experts as to Fergusons competence to be executed

over that of the defense experts. The court only credited the

defense experts as to Fergusons diagnosed history of paranoid

schizophrenia. However, as to Fergusons current state or mental

capacity, the court credited the testimony of Dr. Myers and Dr.

Werner. The unanimous Commission report by Dr. Myers, Dr. Werner

and Dr. Alan Waldman concluded that Ferguson was competent and

understood the nature of the punishment imposed and the reason

for its imposition. After considering the evidence presented

during the hearing, the lower court found their conclusion that

he is sane to be conclusively supported by the record. (V16,

2738-2757 at 2755) (emphasis added).

The Florida Supreme Court affirmed, finding competent,

substantial evidence supported the circuit courts ruling. The

court discussed both Ford and Panetti, and, found the standard

articulated in Florida Rule of Criminal Procedure 3.811 to remain

valid in light of Panetti.

In his statement of the case Ferguson selectively and

misleadingly parses the circuit courts order suggesting that the

Court found his expert, Dr. Woods, credible as to a whole range

of delusions and hallucinations which were not expressed to the

three Commission psychiatrists. See Ferguson, 716 F.3d at 1339

(Fergusons contentions and arguments rest, in large part, on a


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misconception about the state trial courts underlying factual

findings.). Contrary to the defendants argument, which is

supported only by Dr. Woods testimony, Ferguson expressed no

delusion or hallucination to the Commission which would interfere

with his ability to understand the nature of the punishment or

why it was imposed upon him. The lower court did not, as Ferguson

suggests, find that all of his delusions or hallucinations

expressed to Dr. Woods, or even the Commission members, were

genuine or credible. The lower court only credited Fergusons

claim to be the Prince of God, but noted that he appeared to be

presently expressing a Christian belief in the afterlife. (V16,

2738-2757 at 2754). The court only credited the limited Prince of

God assertion that Ferguson expressed to the Commission; not the

expansive, Communist-associated, and grandiose version he

apparently provided to Dr. Woods. Dr. Werner testified that when

the defendant spoke of resurrection, he was stating a Christian

belief which is not uncommon. (CT3, 461-501).

Petitioner misleadingly asserts in his statement of the case

that the commission psychiatrists only reviewed a fraction of

Fergusons thousand page medical history. (Petition at 5). In

fact, the Commission reviewed a large amount of Department of

Corrections records going back to 1978. The Commission also

spent 90 minutes evaluating Ferguson. Fergusons responses to the

Commissions inquiry were logical, coherent, and goal directed.

Dr. Myers testified: For 90 minutes he engaged in regular


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conversation with us. He understood every question we asked him.

He gave coherent logical responses. His speech was normal. It

wasnt real fast. It didnt get disconnected. He had no sign of a

thought disorder, which is a common symptom in schizophrenia. But

we saw no signs of that. (CT2, 256).

When questioning began, Dr. Waldman noted that Ferguson had

been convicted of six murders, but, Ferguson corrected him and

said eight. (CT2, 255). In the interview, Ferguson also

acknowledged the recent change in Floridas lethal injection

protocol and the fact he would be the first to be executed using

a new drug. (CT3, 462). Dr. Waldman asked When you are buried

when your body is buried in the ground, will you be dead? The

defendant replied yes, he would. (CT3, 463). Dr. Werner

testified: He understood the execution process and that he was

going to die and why. (CT3, 506).

Fergusons suggestion that Commission members spent

inadequate time evaluating Ferguson was addressed below. Dr.

Werner testified that the Commission members interviewed Ferguson

for 90 minutes, which is about three times the amount of time a

doctor would ordinarily take to evaluate an individual for a

psychiatric diagnosis. (CT3, 453). Dr. Werner testified that if

the Commission members thought they needed more time to reach a

conclusion, they would have asked for more time. If they could

not have reached a conclusion within a reasonable degree of

medical certainty, we would not have doneit. (CT3, 481-482).


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Similarly, Dr. Myers testified that he has seen, evaluated and

diagnosed thousands of schizophrenic individuals, since medical

school in the 1980s to present. (CT2, 246). Dr. Myers testified

that a clinical interview to assess someone with schizophrenia

can take thirty or forty-five minutes, but, that generally you

can discern if someone is an untreated schizophrenic within

minutes. (CT2, 246). To obtain board certification a

psychiatrist is expected to conduct a thorough evaluation and

come up with a diagnosis and plan within 30 minutes. (CT2, 248).

Dr. Myers stated that he had brought testing material for

malingering and measuring other cognitive criteria with him prior

to the interview. There were, however, no clinical indications

for administering any of those tests. (CT2, 261-262). Dr. Werner

also agreed that none of the Commission members thought that

additional testing was necessary. (CT3, 468-469).

Indeed, the question of Fergusons competence or sanity to

be executed was clearly not a close question for the Commission

members in this case. As Dr. Myers explained, the Commission

members conferred and there were no differences of opinion

amongst them. Everyone felt the same way. Dr. Myers explained:

It was clear to me that there was no evidence of any significant

mental illness. He was - - his thoughts and thinking were clear.

He was of - - at least average intelligence. He was not having

any indication of any psychotic symptoms. He was functioning well

in his day-to-day life. The officers we talked to described him


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as doing well, not showing any bizarre behavior. So there was

just simply no credible evidence that this - - that he had any

major mental illness of any kind going on. (CT2, 262). The

Department of Corrections records revealed that he was on S-1

status since 2001 [S-1, denotes the DOC classification for an

inmate with no identifiably mental health concern] and the last

indication of any mental health symptoms had been in 1995.

Ferguson has had regular reviews for years on end and they are

coming back normal year after year. (CT2, 293, 315).

Dr. Werner also testified that the Commission unanimously

concluded that Mr. Ferguson has a rational understanding of his

impending execution and the reasons for it. (CT3, 515). In the

course of her career, Dr. Werner had occasion to encounter

hundreds if not over a thousand of people with paranoid

schizophrenia. (CT3, 471). Dr. Werner was also aware that some

experts had diagnosed Mr. Ferguson as schizophrenic in the past.

(CT3, 471). Dr. Werner testified that she did not believe that

the defendant suffered from a major mental illness because his

reported hallucinations were not consistent with symptoms of

schizophrenia, and his reported daily living routines and

functioning were inconsistent with the disorganized component of

schizophrenia. Dr. Werner explained that schizophrenics dont

function well. (CT3, 497). Dr. Werner observed no signs of

schizophrenia in Ferguson when she and the other Commission

members examined him. (CT3, 514-515).


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Contrary to Petitioners statement of the case and

Introduction, the facts clearly support the decision of the

state courts below and the Eleventh Circuit which applied those

facts through the deferential lens of the AEDPA, to affirm the

denial of habeas relief.

REASONS FOR DENYING THE WRIT

I.

This Court should decline to exercise certiorari

jurisdiction to review a fact specific decision of the

Eleventh Circuit Court of Appeals affirming the denial

of habeas relief on Fergusons competency to be

executed claim where the underlying state court

decision is neither contrary to, nor an unreasonable

application of this Courts decisions in Ford and

Panetti and which presents no unsettled question of

constitutional law which has engendered conflict among

either state or federal appellate courts. The state

court conclusion that Petitioner is competent to be

executed has overwhelming support in the record.

As noted in the States notice of disposition of related

cases, supra, this petition represents Fergusons third attempt

to gain review of the state courts adverse competency

determination. See Rosoto v. Warden, Cal. State Prison, 83 S. Ct.

1788, 1789 (1963) and Bloeth v. State of N. Y., 82 S. Ct. 661,

662 (1962) (Harlan, J., denying stay of executions pending

review, noting, among other factors, that the Court had

previously declined review of the same or similar issues raised

by the defendants in prior certiorari petitions). Ferguson now

seeks review of the recent Eleventh Circuit Court of Appeals

opinion which comprehensively addressed and rejected his claims


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of error relating to the state courts finding Ferguson competent

to be executed. Fergusons claims do not gain strength from

repetition.

Petitioner argues that this Court should review the Eleventh

Circuits decision affirming the denial of habeas relief from the

state courts decisions finding that Ferguson was competent to be

executed. The lower courts below cited this Courts decisions in

Ford v. Wainwright, 477 U.S. 399, 40910, 106 S. Ct. 2595, 2602

(1986) and Panetti v. Quarterman, 551 U.S. 930, 960, 127 S. Ct.

2842, 2862 (2007) in finding Petitioner competent to be executed.

While Petitioner asserts that this case presents a conflict with

this Courts decision in Panetti, no such conflict exists. What

Petitioner is really seeking in this case is a fact specific

review of the lower state and lower federal court decisions

rejecting his claims. This is not appropriate for this Courts

exercise of certiorari jurisdiction. See Sup. Ct. R. 10. The

court of appeals rejection of Fergusons claims is entirely

dependent on the facts of the case and of interest to no one

other than the parties to this litigation. As such, this Court

should decline to exercise certiorari jurisdiction over this

case. See Chevron U.S.A., Inc. Sheffield, 471 U.S. 1140, 1140

(1985); Rice v. Sioux City Memorial Park Cemetery, 349 U.S. 70,

73-74 (1955); Layne & Bowler Corp. v. Western Well Works, 261

U.S. 387, 392-93 (1923).


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A. AEDPA Deference Due To The State Courts CompetencyDetermination

Petitioner suggests that this case is certiorari worthy

because courts are hopelessly confused as to the deference owed

to state court decisions under the AEDPA. They are not. In

support of his contention Petitioner has managed to find courts

of appeal cases applying the AEDPA in remarkably different legal

and factual situations, with no relation to the specific question

posed in the present case.

Under the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA), 28 U.S.C. 2254(d)(1), a federal court may not

grant a state prisoners habeas application unless the relevant

state-court decision was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States or the

state courts determination of facts was unreasonable in light of

the evidence. See Woodford v. Visciotti, 537 U.S. 19 (2002) and

Yarborough v. Gentry, 540 U.S. 1 (2003) (discussing and applying

the AEDPA). Factual determinations by state courts are presumed

correct absent clear and convincing evidence to the contrary,

2254(e)(1), and a decision adjudicated on the merits in a state

court and based on a factual determination will not be overturned

on factual grounds unless objectively unreasonable in light of

the evidence presented in the state-court proceeding. Miller-El

v. Cockrell, 537 U.S. 322, 340, 123 S. Ct. 1029, 1041 (2003)


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(citing Section 2254(d)(2) and Williams v. Taylor, 529 U.S. 420,

436, 120 S. Ct. 1479 (2000)).

Petitioner objects to the muscular deference which the

Eleventh Circuit provided to the state courts legal and factual

findings under the AEDPA. (Petition at 17). If indeed, the

deference can be described as muscular or difficult to meet,

that is because it was meant to be. Harrington v. Richter, 131

S. Ct. 770, 786 (2011). See Williams v. Taylor, 529 U.S. 420, 436

(2000) (noting that AEDPAs purpose was to further the

principles of comity, finality, and federalism.). The Eleventh

Circuit Court of Appeals did not abdicate its responsibility in

this case, and, comprehensively evaluated Fergusons claims in a

sixty page opinion. The court did not misapply the AEDPA, and, it

properly cited and credited this Courts decisions interpreting

and applying the AEDPA. See Ferguson, 716 F.3d at 1331-32.

The Eleventh Circuit applied the appropriate AEDPA deference

to the State courts in affirming the denial of habeas relief

below. Petitioner has not shown that the Eleventh Circuits

opinion conflicts with any of this Courts precedent, or, that of

any other courts of appeal.

B. The Eleventh Circuit Decision Affirming The Denial Of Habeas

Relief Does Not Conflict With This Courts Decisions In Fordand

Panetti or Any Other Courts Of Appeal Applying This CourtsPrecedent

Panetti did not alter the Ford standard for determining

competency to be executed which Florida adopted in Rules of

Criminal Procedure 3.811 and 3.812. See Rule 3.812(b) (whether


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the prisoner lacks the mental capacity to understand the fact of

the pending execution and the reason for it). In Panetti v.

Quarterman, 551 U.S. 930, 960, 127 S. Ct. 2842, 2862 (2007) this

Court simply stated: Petitioners submission is that he suffers

from a severe, documented mental illness that is the source of

gross delusions preventing him from comprehending the meaning and

purpose of the punishment to which he has been sentenced. This

argument, we hold, should have been considered. Sub judice,

Petitioners beliefs and allegations of mental illness were fully

explored during a two day adversarial hearing in accordance with

the process and procedures outlined in Ford and Panetti.

In accordance with Panetti, the Florida Supreme Courts

decision did not state that Petitioners limited delusional

belief or alleged mental illness was irrelevant to its inquiry.

The court appropriately considered the very limited Prince of God

belief expressed to the Commission [the only such belief

specifically found credible by the circuit court below], but,

noted that Petitioner nonetheless expressed a clear and

unambiguous knowledge of his impending execution and the reason

why this punishment had been imposed upon him. The Florida

Supreme Court correctly found that Panetti did not alter the

standard, but in accordance with this Courts decision, did not

deem irrelevant Petitioners claimed delusion or mental illness

in applying Ford. The Florida Supreme Court stated:

Ferguson argues that the United States Supreme

Courts decision in Panetti clarified the holding in


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Ford and constitutes a change in the standard to beapplied in rule 3.812 proceedings to represent astricter standard than that adopted by this Court in

its decision in Provenzano. We disagree. The Panetticourt explicitly declined to extend its ruling to allcompetency proceedings. Furthermore, to the extent that

Panetti represents any change in the Courtsjurisprudence, the change does not alter our decisionin Provenzano.

The issue in Panetti was whether [t]he statecourts failure to provide the procedures mandated by

Fordconstituted an unreasonable application of clearlyestablished law as determined by [the Supreme] Court.

Panetti, 551 U.S. at 948. The Fifth Circuit Court ofAppeals required only that Panetti knew the fact of hisimpending execution and the factual predicate for the

execution. Panetti, 551 U.S. at 942. Acknowledging that

[t]he opinions in Ford . . . did not set forth aprecise standard for competency, the Courtnevertheless found that the Fifth Circuits standard

was not sufficient. Panetti, 551 U.S. at 957-60. TheCourt stated that [a] prisoners awareness of theStates rationale for an execution is not the same as a

rational understanding of it [and] Ford does not

foreclose inquiry into the latter. Panetti, 551 U.S.at 959. The Court, accordingly, rejected the standardpronounced by the Fifth Circuit, but specified that itwould not attempt to set down a rule governing all

competency determinations. Panetti at 960-61.

Consequently, Panetti is a narrowly tailored decisionthat does not overturn this Courts decision in

Provenzano.

Petitioners attempt to manufacture a conflict between the

Florida Supreme Court and Panetti is without merit. Indeed,

Petitioner faults the Florida Supreme Court for citing Panetti

for the proposition the Court was not setting down a rule

applicable to all competency proceedings. However, this is

exactly what this Court stated in Panetti. See Panetti, 551 U.S.

at 961 (Although we reject the standard followed by the Court of

Appeals, we do not attempt to set down a rule governing all


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competency determinations.). Panetti did not fundamentally alter

or change the standard set forth by Justice Powells concurring

opinion in Ford as Petitioner seemingly argues. See e.g. Green v.

State, 374 S.W. 3d 434, 443 (Tex. Crim. App. 2012) (Our reading

of Panetti does not find a mandate regarding how to weigh any

particular evidence; instead, we read Panetti as instructing that

evidence of delusions may not, categorically, be deemed

irrelevant.); Bedford v. Bobby, 645 F.3d 372, 378 (6th Cir.

2011) (noting the interplay between Ford and Panetti and the wide

range of reasonable applications of the standard). The trial

court in this case applied Ford as clarified in Panetti, finding

that despite his diagnosed mental illness, there is no evidence

that it interferes, in any way, with his rational

understanding of the fact of his pending execution and the

reason for it. (V16, 2731). The Florida Supreme Court did not

dispense with a rationality requirement, observing that the

limited question before the court was whether or not mental

illness interferes with his rational understanding of the fact

of his pending execution. Ferguson, 112 So. 3d at 1156. The

Florida Supreme Court found competent, substantial evidence in

the record to support this decision. Id. at 1157.

Petitioner argues as if Judge Wilson actually dissented in

this case, rather than concurring in the judgment. Although in

his concurring opinion, Judge Wilson expressed concern that the

Florida Supreme Courts standard announced in its pre-Panetti


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Provenzano opinion was no longer valid, he ultimately agreed that

under appropriate deference, he could not disagree with the state

courts ultimate conclusion that Ferguson was competent to be

executed. Ferguson, 716 F.3d at 1344 (Wilson, J., concurring). In

fact, the Florida Supreme Court applied a rationality element to

their evaluation of Fergusons claim here.

The Eleventh Circuit rejected Fergusons contention that the

state courts applied a bare factual awareness test. The court

stated, in part:

In the present case, the Florida Supreme Court didnot apply the bare and narrow factual-awarenessstandard that the United States Supreme Court rejected

in Panetti. Instead, in reviewing the state trialcourts ruling against Ferguson, the Florida SupremeCourt framed the question as whether there wassubstantial evidence to support the trial courtsdetermination that Fergusons paranoid schizophreniaand PrinceofGod delusion did not interfere with hisrational understanding of the fact of his pending

execution and the reason for it. Ferguson, 112 So. 3dat 1156, 2012 WL 7989528 at *2. Citing its decision in

Provenzano II and Justice Powells concurring opinion

in Ford, the court variously articulated the competencystandard as whether an inmate lacks the capacity to

understand the nature of the death penalty and why itwas imposed, whether he is aware of the punishment

[he is] about to receive and the reason [he is] toreceive it, and whether he understand[s] the

connection between his crime and the punishment he is

to receive for it. Id. at 1156, 1157, 2012 WL 7989528at *2, 3, 4. The Florida Supreme Court concluded that,despite Fergusons documented history of paranoid

schizophrenia and genuine delusional belief that he isthe Prince of God, the record nonetheless shows that he

understands what is taking place and why. Id. at1157, 2012 WL 7989528 at *3. In particular, the Courtnoted that Ferguson is aware that he has never beforehad a death warrant signed on his behalf and that hewould be the first person to receive Floridas currentprotocol of medications for lethal injection, and it

found sufficient evidence to support the trial courts


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findings that Ferguson is aware that the State is

executing him for the murders he committed and that he

will physically die as a result of the execution. Id.at 1157, 2012 WL 7989528 at *4.

The competency standard articulated and applied by

the Florida Supreme Court is not inconsistent withclearly established federal law, as set forth in Ford

and Panetti. The court correctly found that Panetti didnot materially alter the competency standard that it

had announced in Provenzano II, which itself adopted

the formulation endorsed by Justice Powell in Ford.Contrary to Fergusons contention, the Supreme Courts

decision in Panetti did not abrogate or otherwisereject the awareness standard articulated by JusticePowell, nor did it impose a new, more rigorous standardfor assessing competency to be executed. Instead, the

Supreme Court in Panetti generally accepted the

proposition that Ford had laid down the substantivefederal baseline for competency, and it clarified thatthe requisite awareness or comprehension required

by Fordwas tantamount to a rational understanding ofthe connection between a prisoners crimes and his

execution. Panetti, 551 U.S. at 935, 95859, 127 S.Ct.at 2848, 286162. What the Supreme Court rejected in

Panetti was an overly narrow interpretation of Fordthat deems a prisoners mental illness and delusionalbeliefs irrelevant to whether he can understand thefact of his pending execution and the reason for it.

Id. at 95961, 127 S.Ct. at 286162 (rejecting a

strict test for competency that treats delusionalbeliefs as irrelevant). The Court explained that the

understanding required by Ford is a rationalunderstanding, even though it declined to define

rational in this context. See id. at 95962, 127S.Ct. at 286263.

Unlike the Fifth Circuit approach rejected in

Panetti, the Florida Supreme Court neither suggestedthat Ferguson is competent to be executed merelybecause he can identify the States articulatedrationale for his punishment, nor did it deem his

paranoid schizophrenia and delusional belief that he isthe Prince of God to be irrelevant to the issue of

competency.[FN4] See Ferguson, 112 So. 3d at 115558,2012 WL 7989528 at *24. To the contrary, the FloridaSupreme Court concluded that, despite Fergusons mentalillness and delusional belief, he nonethelessunderstands the connection between his impending

execution and the murders he had committed and

understands that he will die when executed. Id. at


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115758, 2012 WL 7989528 at *4.

FN4. Read out of context, the Florida SupremeCourts statement that [w]hether Fergusonsconvictions are representative of mainstreamChristian principles or delusions that derive from

his mental illness does not affect our inquirymight be interpreted as indicating that the courtrefused to consider Fergusons delusions or their

source. See Ferguson, 112 So. 3d at 115556, 2012WL 7989528 at *2. It is evident from the context,however, that the quoted statement was instead adecision not to adopt the state trial courtscharacterization of Fergusons delusions as amanifestation of traditional Christian beliefs,albeit on a grandiose scale. As the remainder ofthe Florida Supreme Courts opinion makes clear,it did consider Fergusons paranoid schizophrenia

and PrinceofGod delusion as they relate to theissue of rational understanding, and it concludedthat he nevertheless has a rational understandingthat the reason he is going to be executed is themurders he committed and that when executed hewill die. Just as Panettis severe mentalillness and paranoid delusions did not, in the

final analysis, render him incompetent to be

executed, see Panetti, 2008 WL 2338498, at *3637,the Florida Supreme Court found that Fergusonsdelusions did not render him incompetent to beexecuted either.

Although the Florida Supreme Courts decisions in

Provenzano Iand Provenzano IIpredated Panetti, theymake clear that Floridas awareness standard forjudging competency to be executed includes an inquiryinto rationality and amounts to an awareness-plus-

rational-understanding test. See Provenzano I, 750 So.2d at 60203 (rejecting the argument that the Floridastandard does not allow for the rational appreciation

of the connection between the crime and the punishmentand holding that Provenzano should be afforded theopportunity to cross-examine [the States expert

witness concerning] Provenzanos rational appreciationof the connection between his crime and the punishment

he is to receive) (emphasis added); Provenzano II, 760So. 2d at 140 (citing with approval and affirming thetrial courts findings that Provenzano has a factualand rational understanding of ... the fact that inaccordance with the jurys recommendation, he wassentenced to death for the murder of Bailiff Arnie


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Wilkerson, and that he will die once he is executed)(emphasis added).

Ferguson, 716 F.3d at 1335-1337.

Contrary to Fergusons argument, reviewing courts are not

confused in their application of the competency to be executed

standard. Rather, the courts are often confronted with varying

factual presentations or symptoms of mental illness which render

legal opinions sometimes difficult. There is no magic or specific

articulation of a standard from this Court which would suddenly

provide a concrete and scientific answer to the myriad of

potential mental health issues courts may confront in determining

competency to be executed.

Petitioner also argues that some apparently imprecise

language in the state circuit court ruling warrants certiorari

review and possible reversal. Specifically, Ferguson repeatedly

complains that the state circuit court used the term no

evidence that Ferguson was incompetent, when it should have

said, no credible evidence when discussing its conclusion that

Ferguson was competent to be executed. The Eleventh Circuit Court

of Appeals did not rewrite the state court competency finding;

rather, it simply recognized that habeas relief cannot be so

fickle as to warrant reversal on the lack of the appropriate

modifier, credible in the state courts discussion of a factual


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matter.5 The Eleventh Circuit stated:

While the state trial courts choice of words (noevidence) could have been more precise and technicallycorrect (no credible evidence), giving its opinion

the benefit of the doubt, as we are required to do by

AEDPA, it is clear to us that the trial court meantthat it found no credible evidence that Fergusongenuinely believes that he will not die as a result ofhis execution or that his execution is unrelated to thecrimes for which he was convicted.[FN7] The courtcredited the testimony of Drs. Myers and Werner thatFerguson rationally understands that he is going to dieand why.

FN7. There is nothing to suggest that the statetrial court simply ignored facets of Dr. Woodstestimony, instead of deeming them not credible.

Ferguson, No. 042012CA507, op. at 6.

Ferguson, 716 F.3d at 1340.

The allegedly imprecise language utilized by the state court

in this case had no impact upon the courts ultimate conclusion

properly crediting the testimony of the state experts on the

question of Fergusons competency to be executed and finding the

record conclusively supported that conclusion. (V16, 2738-2757

at 2755). Indeed, in Woodford v. Visciotti, 537 U.S. 19, 23-24

(2002) this Court reversed the Ninth Circuit Court of Appeals

which had granted habeas relief, in part, on the state courts

use of imprecise language in its discussion of a legal standard,

noting the following:

Despite all these citations of, and quotations

from, Strickland, the Ninth Circuit concluded that theCalifornia Supreme Court had held respondent to a

5 In defense of the state circuit court in this matter it must benoted that this matter was litigated under an active deathwarrant and the court did not have weeks or even days to perfectits order finding Ferguson competent to be executed.


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standard of proof higher than what that case prescribesfor one reason: in three places (there was in fact afourth) the opinion used the term probable without

the modifier reasonably. 288 F.3d, at 1108-1109, andn. 11. This was error. The California Supreme Courts

opinion painstakingly describes the Strickland

standard. Its occasional shorthand reference to thatstandard by use of the term probable without the

modifier may perhaps be imprecise, but if so it can nomore be considered a repudiation of the standard thancan this Courts own occasional indulgence in the same

imprecision. See Mickens v. Taylor, 535 U.S. 126, 166,122 S.Ct. 1237, 1241, 152 L.Ed.2d 291 (2002) (probable

effect upon the outcome); Williams v. Taylor, 529 U.S.362, 393, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)(probably affected the outcome).

When the veneer of a legal controversy is peeled away, it is

clear that what Petitioner really seeks is a fact intensive

review of the state court decision in the hope that this Court

will resolve the competency determination differently from the

state and lower federal courts. There is no dispute as to the

application of the law; simply a disputed outcome, in a case

which conflicts with no precedent from this Court or any other

courts of appeal. As such, certiorari review should be denied.

See United States v. Johnston, 268 U.S. 220, 227 (1925) (noting

that the Court does not grant a certiorari to review evidence

and discuss specific facts.). This Court is consistent in not

granting certiorari except in cases involving principles the

settlement of which is of importance to the public as

distinguished from that of the parties. Rice v. Sioux City

Memorial Park Cemetery, Inc., 349 U.S. 70, 79 (1955) (citing

Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387,

393 (1923)).


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C. This Courts Fact Intensive Review Would Not Alter The ResultIn This Case Where The Underlying State Court Ruling Is DueConsiderable Deference Under The AEDPA And Overwhelming EvidenceSupports The State Courts Competency Determination

In any case, even if this Court were to engage in a fact

intensive review as was conducted by the Eleventh Circuit Court

of Appeals in this case, this Court would not arrive at a

different conclusion. Competency to be executed, like competency

to stand trial, is a fact intensive question and the state court

determination is therefore due considerable deference. See

Demosthenes v. Baal, 495 U.S. 731, 735 (1990) (observing in a

pre-AEDPA case that under ' 2254s presumption of correctness,

the state courts factual finding as to Baals competence is

binding on a federal habeas court). Petitioner has not shown

that the state courts factual findings were incorrect, much less

clearly erroneous. This was not a close case.

The evidence below clearly established that Petitioner had a

rational and factual understanding of his execution and the

reason for it. The unanimous Commission report by Dr. Myers, Dr.

Werner and Dr. Alan Waldman concluded that Ferguson was competent

and understood the nature of the punishment imposed and the

reason for its imposition. The lower court found their

conclusion that he is sane to be conclusively supported by the

record after an extensive two day evidentiary hearing. (V16,

2738-2757 at 2755) (emphasis added).

Petitioner did not express, nor did the circuit court credit

as credible any delusion of the sort expressed by the defendant


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in Panetti. In Panetti, a number of doctors testified that

Panetti did not understand that Texas is a lawfully constituted

authority and a number of doctors testified that Panetti

believes the real reason he is to be executed is for preaching

the Gospel.Panetti v. Dretke, 401 F. Supp. 2d 702, 712 (W.D.

Tex. 2004). Petitioners ability to connect his conviction and

sentence is objectively rational in that it is the same

reasonable connection as would be made by the average person.

Thus, in the evaluation itself, Ferguson clearly

demonstrated to the Commission that he knew he was set to be

executed and why he was to be executed, having been convicted of

eight murders. Ferguson discussed his execution and recognized

that he would be the first individual to be executed with the

substitution of a new drug in the protocol. Notably, Petitioner

did not assert that he could not die or that he would act with

God to foil a Communist conspiracy as Ferguson had apparently

reported to defense expert, Dr. Woods. Ferguson expressed no

delusion or hallucination to the Commission which would interfere

with his ability to understand the nature of the punishment or

why it was imposed upon him.6 The lower court did not, as

6 Dr. Woods was the only expert who testified that Ferguson wasborderline retarded, which on cross-examination, he acknowledgedwas an imprecise or not recognized intelligence diagnosis.Further, all of the other experts who testified agreed thatFerguson was of average intelligence. Even the other defenseexpert, Dr. Rogers, acknowledged that Ferguson appeared to be ofaverage intelligence.


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Ferguson suggests, find that all of his delusions or

hallucinations expressed to Dr. Woods, or even the Commission

members, were genuine or credible. The Eleventh Circuit Court of

Appeals recognized that Petitioners attempt to clothe all of Dr.

Woods opinions expressed during the hearing within the cloak of

the circuit courts credibility finding was unwarranted. See

Ferguson, 716 F.3d at 1339 (Fergusons contentions and arguments

rest, in large part, on a misconception about the state trial

courts underlying factual findings. A close reading of the trial

courts opinion reveals that it did not credit all of Dr. Woods

statements about Fergusons delusions.). The lower court only

credited Fergusons claim to be the Prince of God, but noted that

he appeared to be presently expressing a Christian belief in the

afterlife. (V16, 2738-2757 at 2754). The court did not credit the

expansive, communist-associated, and grandiose version he

apparently provided to only Dr. Woods. Dr. Werner testified that

when the defendant spoke of resurrection, he was stating a

Christian belief which is not uncommon. (CT 461-501). Even if

Ferguson had expressed an unusual religious belief to the

Commission, it clearly did not prevent him from having a rational

understanding of the punishment that was imposed and why it had

been imposed upon him. Unlike Panetti, Petitioner did not express

any belief that he was going to be executed for his religious

beliefs; he plainly acknowledged his convictions and

specifically, the exact number of the murders he was convicted


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of. Nor, did Petitioner assert that he could not die, or would

not die as a result of his execution.

In addition, the state circuit court noted that the records

and testimony from Department of Corrections personnel supported

the conclusions of Dr. Myers and Dr. Werner. Fergusons

demonstrated ability to communicate, meet his daily needs and

otherwise lead a normal life within the Department of Corrections

is at odds with the notion he is severely mentally ill. This

indicates he has the capacity to perceive and respond

appropriately to his environment. See, e.g Lafferty v. Cook, 949

F.2d 1546, 1551 (10th Cir. 1991) (on competency to stand trial,

court noted a defendant lacks the requisite rational

understanding if his mental condition precludes him from

perceiving accurately, interpreting, and/or responding

appropriately to the world around him.). Indeed, the

corrections personnel documented the complete absence of unusual

or bizarre behavior for more than a decade under the closely

supervised environment on death row.

Dr. Woods attempted to explain Fergusons complete lack of

observable symptoms as some type of Geriatric Schizophrenic

response. However, Dr. Woods acknowledged the last observable

signs of mental impairment from the DOC was from 1995. (CT4,

634). This was seventeen (17) years ago when Ferguson was 47.

Thus, being elderly cannot in anyway explain Fergusons complete

lack of schizophrenia symptoms for the past 17 years, the past


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twelve of which, he has not taken any antipsychotic medication.

As Dr. Myers explained, a serious illness like schizophrenia does

not disappear and then just reappear. (CT2, 298).

The complete and utter lack of observable symptoms of mental

illness in the closely supervised setting of death row for more

than a decade establishes that Petitioners assertions of

continuing and extreme mental illness, supported only by Dr.

Woods during the hearing below, is not credible. Indeed, the

circuit court only found that Fergusons very limited, and modest

statements to the Commission did not appear to be malingered. The

evidence rather convincingly establishes that any claim of severe

mental impairment is not credible and that the state courts

properly credited the contrary opinions of the experts called by

the State below.7

As Dr. Myers and Dr. Suarez noted, the records from DOC

reflect a very long period without any signs or symptoms of a

mental disease, which would be extremely unusual for a true

paranoid schizophrenic. The greater weight of the evidence both

expert and lay witness, suggests that Ferguson is not currently a

7 Dr. Myers did not discount earlier diagnoses of schizophrenia,but noted that Ferguson does not meet the criteria forschizophrenia now. (CT2, 300). Dr. Myers explained that Fergusonis either a very lucky man who had a remission of his

schizophrenic illness, which is unusual, - - in fact, I wish thatwas something that happened more often -- or he successfullymalingered mental illness back then, and people were led tobelieve he did have schizophrenia when he didnt. (CT2, 300).Similarly, Dr. Werner observed no signs of schizophrenia inFerguson when she examined him. (CT3, 514-515).


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paranoid schizophrenic, and, suggests his earlier diagnosis may

well have been erroneous. Nonetheless, as recognized by the lower

court, even if Ferguson was properly diagnosed as a paranoid

schizophrenic in the past, nothing in his present condition or

presentation indicates that he is not competent to be executed.

In conclusion, Petitioner has failed to show a denial of any

constitutional right or conflict with any prior precedent of this

Court. Petitioner was afforded an evidentiary hearing on his

claim of incompetency, and simply failed to sustain his burden of

proof. The instant Petition presents a fact specific claim,

relying on factual assertions which were largely rejected by the

lower courts. There are no implications beyond the parties

involved in this case, mandating the denial of certiorari review.

Butler v. McKellar, 494 U.S. 407 (1990); Ross v. Moffitt, 417

U.S. 600, 616-617 (1974).


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CONCLUSION

Based on the foregoing, Respondent respectfully requests

that this Court DENY the petition for writ of certiorari and the

accompanying request for a stay.

Respectfully submitted,

PAMELA JO BONDIAttorney GeneralTallahassee, Florida

s/ Stephen D. AkeSTEPHEN D. AKE*Assistant Attorney General

Florida Bar No. [email protected]@myfloridalegal.com*Counsel of Record for Respondent

SCOTT A. BROWNEAssistant Attorney GeneralFlorida Bar No. [email protected]@myfloridalegal.comOffice of the Attorney GeneralConcourse Center 4

3507 E. Frontage Road, Suite 200Tampa, Florida 33607-7013Telephone: (813) 287-7910Facsimile: (813) 281-5501


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing RESPONDENTS BRIEF IN OPPOSITION was furnished by

electronic mail to Christopher T. Handman,

[[email protected]]; Catherine E. Stetson

[[email protected]]; Erica Knievel Songer,

[[email protected]]; Marisa F.L. Cruz

[[email protected]]; Sarah M. Cummings

[[email protected]]; and Kathryn L. Marshall

[[email protected]], Hogan Lovells US LLP, 555

Thirteenth St. N.W., Washington, D.C. 20004; and to Benjamin J.O.

Lewis, [[email protected]], Hogan Lovells US LLP, 875

Third Ave., New York, NY 10022, on this 26th day of July, 2013. I

further certify that all parties required to be served have been

served.

s/ Stephen D. AkeCounsel for Respondent

ferguson 13-5507 brief in opposition

Documents